Archive for the 'Employment-Based Immigration' Category

Microsoft To Cut 18,000 Jobs: Immigration Status When Laid-Off

On Thursday July 17, 2014, Microsoft made an announcement that 18,000 will be slashed- most by December 2014 and all by June 2015.  While this is a blow to the economy which will see about 1300 job cuts in Washington State. To the 18,000 employees, it is important for anyone with a work visa in the US to start making plans for post-lay-off.

In 2009 when the economy tanked and resulted is many lay-offs, I had written an article titled “The Importance of Maintaining Status When Laid Off”.  I have added the link here.

Employment-based immigration law is very rigid and one cannot be in the US without employment, should that be the basis of stay in the US. Should one fall out of status for any reason, it will be hard to impossible to get back into status.  So, any change of status must occur before the current status ends (in other words, before the last day of employment, if possible).

Whether you are in Seattle or any part of the United States, the federal immigration laws will apply and immigration status must be a priority consideration for anyone affected.

 

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

We Need Better Immigration Policies for Startups and Entrepreneurs

 We Need Better Immigration Policies for Startups and Entrepreneurs

- Tahmina Watson

“USCIS intends to revoke your H-1B visa because we have discovered you are a co-founder.” Yes. That is indeed what my client learned one morning.  USCIS learned during the renewal process of my client’s previously approved H-1B case that he was an original co-founder.  While my client never intended to hide it, the information was not specifically mentioned in the initial filing.  After a series of requests for further evidence, the final request was regarding the relationship between my client and his company.

My client, a co-founder of his company – who has garnered much praise in the tech industry, employs seven full-time American workers, and has helped create several indirect jobs by virtue of those who use and sell his product – was facing imminent departure from the U.S. His business, business partner, employees, and clients all were also put into limbo as a result.

Why? Don’t we want companies to start here? Well, currently, U.S. immigration law does not have a specific visa category for Startup founders, and the available visa options are far from ideal.  A very strict policy was laid down in a memo on January 8, 2010 by Donald Neufeld, Associate Director of Service Center Operations of USCIS. That memo made some drastic changes in the way H-1B cases would be adjudicated and put immense restrictions on the employer-employee relationship, causing adverse effects to petitions by founders.

To successfully apply for an H-1B as a co-founder, one must categorically prove that the company controls the founder’s employment.  To prove such control, the USCIS expects an onerous amount of corporate documentation, including articles of incorporation, board meeting minutes, shareholder agreements, stock ledgers, etc.

It was my privilege to help my client win this case.  As a team, we brainstormed the type of documentation he would be able to provide.  We decided to send many internal, otherwise confidential, documentation to demonstrate he was always given direction in his work and he was not the one making decisions.  We submitted emails, client contracts, employee information, payroll evidence, references and much more.  It was a challenging request to say the least.

Startups by their nature operate lean and mean.  Startup founders/entrepreneurs are known to work around the clock to ensure their products are successful.  In the efforts to have a successful company, they have employees to supervise and clients to keep happy.  Instead of using all his energy to build the business, my client was anxious and worried about providing enough of the right kind of information to respond to a challenging and burdensome request.  I am sure that during this intense period, my client suffered loss both emotionally and financially.

Lessening the efficiency of a person while they’re trying to get a business off the ground makes no sense. One should not have to defend oneself for being a founder of a company; it should be a matter of pride.  Luckily we were able to successfully demonstrate that his employment was controlled by the company.  Many founders are not so lucky and end up cut off from the start up they helped create by our irrational immigration laws.

We cannot have rhetoric from our government that calls for entrepreneurs and the need to keep high-skilled workers in the U.S., while that same government acts against implementing that ideology.

In the absence of a Startup Visa, I suggest that two changes are made to existing policy with immediate effect.  Firstly, eliminate the use of the Neufeld Memo, at least for founders and co-founders of startups utilizing H-1B visas.  Founders need to operate their businesses.  Often they will have many roles in addition to their primary H-1B job description.  For example, as a business owner, I am not only a lawyer, but a human resources manager, marketing manager, bookkeeper, supervisor and countless others.  To have my company control my job would impede my success.

Secondly, allow the use of cash substitutes such as stock valuation, convertible notes, and other such regularly used methods instead of cash wages.  Startups generally cannot afford high wages, particularly in the early stages.  They need the opportunity to get their companies to the stage where funding can be obtained from investors.  While the policy argument against cash substitutes may be fear of the entrepreneur becoming a public charge, USCIS should impose policy to prevent that and revoke someone’s visa if he or she resorts to public assistance.  Entrepreneurs are resourceful people who do not want handouts from the system.  Give them the chance to start their companies, contribute to the economy, and create jobs for American workers.  After all, America is a nation of immigrants.

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

August 2014 Visa Bulletin Commentary

The August 2014 visa bulletin was released today. Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico: No movement in F2A category leaving priority date at 1 May 2012, F2B preference advanced 60 days with PD at 1 July 2007;  F4 category advanced 8 days to PD at 1 January 200s;  EB2 is current and, and EB3 sees no movement leaving to PD at 1 April 2011.

For India only:  No movement in F2A category  leaving priority date at 1 May 2012, F2B preference advanced 60 days with PD at 1 July 2007;  F4 category advanced 8 days to PD at 1 January 2002;  EB India sees a 4 months and 21 days jump forward  taking PD to 22 January 2009 and EB3 sees some forward movement of 7 days taking us to priority date 8 November 2003.

With the jump forward for EB3 India, it is important for those who are eligible to prepare filing your I-485 package as soon as possible.  Please note you cannot file until August 1st and while the priority date remains current for you.  Good luck to those who can file!

We will report on the September 2014 visa bulletin when it is released. See below for future cut off dates information:

D.  VISA AVAILABILITY IN THE COMING MONTHS

The China-mainland born Employment Third and Third Other Workers cut-off dates have advanced for the month of August, and could do so again for September. There are two reasons for this advance after the retrogression of the cut-off date earlier this summer: 1) The heavy demand by applicants with priority dates significantly (years) earlier than the previous cut-off date has declined during the past two months, and 2) declining number use in the Family preferences during May and June, combined with updated estimates of such number use through the end of the fiscal year, has resulted in availability of several hundred numbers for use in the China-mainland born Employment Third preference.

During the past two months, the India Employment Second preference cut-off date has advanced very rapidly based on the projected availability of “otherwise unused” numbers under the worldwide preference limit. It must not be assumed that this cut-off date will continue to advance at the same pace during the coming months. A cut-off date does not mean that everyone with a priority date before such cut-off date has already been processed to conclusion. It remains to be seen how heavy the demand for visa numbers by applicants will be in the coming months, and what the priority dates of such applicants may be. Heavy demand by applicants with priority dates significantly earlier than the established cut-off date is expected to materialize within the next several months, at which time the cut-off date is likely to retrogress significantly.

July 2014 Visa Bulletin Commentary- EB2 India Sees Significant Advancement!

visa-passport blog picThe July 2014 visa bulletin was released this morning.

Headline: EB2 India sees a jump forward of 3 years, 9 months and 18 days.  

Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico: No movement in F2A category since last month’s retrogression leaving priority date at 1 May 2012, F2B preference advanced 30 days with PD at 1 May 2007;  F4 category advanced 7 days to PD at 22 December 2001;  EB2 is current and, and EB3 sees no movement since last month’s retrogression leaving to PD at 1 April 2011.

For India only:  No movement in F2A category since last months retrogression leaving priority date at 1 May 2012, F2B preference advanced 30 days with PD at 1 May 2007;  F4 category advanced 7 days to PD at 22 December 2001;  EB India sees huge jump forward of 3 years, 9 months and 18 days taking PD to 1 September 2008 and EB3 sees some forward movement of 15 days taking us to priority date 1 November 2003.

With the significant jump forward for EB3 India, it is important for those who are eligible to prepare filing your I-485 package as soon as possible.  Please note you cannot file until July 1st and while the priority date remains current for you.  Good luck to those who can file!

We will report on the August 2014 visa bulletin when it is released.

 

July 2014 Visa Bulletin Is Out!

The July 2014 Visa Bulletin was released a short while ago. Our usual commentary to follow soon, stay tuned!

Tahmina Discusses New H4 EAD Rule on Feature News Story Tonight at 8pm PST

 

Tahmina on CCTV-America

Tahmina on CCTV-America

You may recall our recent post about the H4 EAD news story we participated in.

The story will air tonight (June 3) at 8pm PST on CCTV America’s “Biz Asia America” on Comcast channel 334 in the Seattle area. The program is also featured on the Dish Network at the same time. Let us know if you watch it!   You can check it out online too at www.cctv-america.tv/livenews.    Here is the link to the video:

http://www.cctv-america.com/2014/06/04/reformed-h-1b-visas-let-spouses-work

 

CCTV America image copied from their website

CCTV America image copied from their website

H4 EAD Comment Period Continues

The H4 EAD comment period is currently open and it is important that you leave a positive comment for the administration to take into account.  Like with all things, the opposition voice is loud. It is imperative that the positive voice is louder to drown out the opposition.

Here is link to the official ‘tips’ on leaving comments.

Here is the link where you can leave your comment.

If you are an H4 visa holder, explain why you can be an asset to the community and how you can contribute to the US economy.  Always best to give a little background of yourself too.

Last date to leave comments is on July 11, 2014.  If you have any questions, you are welcome to email us.

 

 

 

 

Tahmina Discusses New H4 EAD Rule on Feature News Story

Watch out for Tahmina on Feature News Story sometime next week discussing the newly proposed rules allowing work permits to H1b spouses.  The story will air on Comcast channel 334 and several other channels. Here are a few action shots.  Let us know if you catch us on TV!

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H4 Proposed Rule in Federal Register- Please Send Positive Comments!

The proposed rules for allowing work permission to certain H1b spouses are here! They will be officially published on May 12.  There will be a 60 day comment period from publication.  It is extremely important that we take action and send comments to ensure the rules are implemented.  Here is a link to the rules http://www.ofr.gov/OFRUpload/OFRData/2014-10734_PI.pdf .

For all of you who have been waiting to this rule, this is the time to take action and encourage everyone you know to take action! We need to overwhelm the voices of the opposition! Be the 12th Man!

The following are noteworthy:

1. Employment authorization will be issued for 2 years. 

2. $380 fees.

3. Can renew upto 120 days in advance.

 Comments can be made by email, mail or hand delivery and must mention the below DHS Docket No.  See below text copied from the rule.

ADDRESSES: You may submit comments, identified by DHS Docket No.
USCIS-2010-0017, by any one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the
Web site instructions for submitting comments.

• E-mail: You may submit comments directly to U.S. Citizenship and Immigration
Services by e-mail at uscisfrcomment@dhs.gov. Include DHS docket number
USCIS-2010-0017 in the subject line of the message.

• Mail: Laura Dawkins, Chief Regulatory Coordinator, Regulatory
Coordination Division, Office of Policy and Strategy, U.S. Citizenship
and Immigration Services, Department of Homeland Security, 20
Massachusetts Avenue, NW., Washington, DC 20529. To ensure
proper handling, please reference DHS Docket No. USCIS-2010-0017
on your correspondence. This mailing address may also be used for
paper, disk, or CD-ROM submissions.

• Hand Delivery/Courier: Laura Dawkins, Chief Regulatory
Coordinator, Regulatory Coordination Division, Office of Policy and
Strategy, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC
20529; Telephone (202) 272-8377.

June 2014 Visa Bulletin Commentary

visa-passport blog picThe June 2014 Visa Bulletin was released today.  Retrogrssion in F2A and EB3 all countries categories. 

Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico: F2A retrogressed1 year and 4 months to 1 May 2012, F2B preference advanced 60 days with PD at 1 April 2007;  F4 category advanced 7 days to PD at 15 December 2001;  EB2 is current and, and EB3  has retrogressed  1 years and 6 months to PD at 1 April 2011.

For India only:  F2A retrogressed1 yeas and 4 months to 1 May 2012, F2B preference advanced 60 days with PD at 1 April 2007;  F4 category advanced 7 days to PD at 15 December 2001; there is still no movement in EB2 preference category and EB3 sees some forward movement of 14 days taking us to priority date 15 October 2003.

While there was warning of retrogression last month, it is always hard to see it in black and white.  Please see below for message from Department of State regarding further possible retrogression.

We will report on the July 2014 visa bulletin when it is released.

Important text from the June 2014 visa bulletin below.

 D.  RETROGRESSION OF JUNE CUT-OFF DATES

WORLDWIDE F2A:
The cut-off date for the Family F2A category was advanced at a very rapid pace during fiscal year 2013 in an effort to generate demand to use all numbers available under the annual limit. Those movements have resulted in a dramatic increase in the level of applicant demand being received during the past seven months. This has required the retrogression of the Family F2A cut-off date for June in an effort to hold number use within the annual numerical limit. Further retrogression cannot be ruled out should demand by applicants with very early priority dates continue to increase.

MEXICO F2A:
Despite a previous retrogression, the level of demand has remained excessive, resulting in a further retrogression of this cut-off date to hold number use within the annual limit.

Employment Third, and Third Other Workers:
The unexpected and dramatic increase in demand being received from U.S. Citizenship and Immigration Service Offices during the past several months has resulted in number use approaching the annual limit for this category. As a result, it has been necessary to retrogress the Worldwide, China, and Mexico cut-off dates for the month of June.

Notices were included in several Visa Bulletins during the past year alerting readers to the possibility of such retrogressions. While corrective action in some categories has become necessary earlier than was anticipated based on the information available earlier, it is hoped that readers are not caught off guard by these retrogressions.


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